DISSENTING REPORT BY THE AUSTRALIAN GREENS

Introduction

1.1        The Australian Greens consider that the welfare and best interests of children should be front and centre of Government decision making. We know that failure to address issues of disadvantage in early years can have lasting consequences for adulthood.

1.2        The Commissioner would tackle problems such as child abuse, neglect, poor education, poverty, youth homelessness and social disadvantage. The Commissioner would also provide a voice for young people, a means of communication with Government, and a simple avenue for complaint for ill-treatment.

1.3        The Bill would assist Australia in meeting its international obligations, in particular, its obligations under the United Nations Convention on the Rights of the Child.

1.4        In developing the Bill, the Australian Greens worked closely with Save the Children Australia who have been advocating for this reform for some time.

1.5        The Greens wish to recognise the contribution of the child & youth and human rights advocacy sectors to this inquiry. While there was overwhelming support for the Bill, a number of submissions identified areas for improvement. We welcome these suggestions and consider many of these would enhance the Bill. It is a testament to the effectiveness of the committee process that some constructive amendments have been advanced.

1.6        We do note that despite the clear support of a majority of submitters, the committee is recommending that their evidence simply be fed into discussions around the Government’s National Framework for Protecting Australia’s Children.

1.7        Rather than being deferred to another long term process of deliberation, the Greens consider issues of children’s rights and welfare necessitate a more immediate and targeted response.

1.8        This is not a new proposal. It has been on the agenda at a community and parliamentary level for some time. In fact the first Bill was proposed almost a decade ago. There is a pressing need for an independent Commissioner to ensure that children and young people are not neglected during Government decision making.

1.9        While the Government’s own framework will play an important role in a national conversation about how best to advance the rights and interests of children, it can be no substitute for an independent Commissioner, appropriately resourced to have regards for these issues at a national level.

Concerns with the Bill

Focus of the Commissioner

1.10      Many submitters expressed concern that the Commonwealth Commissioner may be occupied with individual advocacy or potentially duplicate the work of other Commissioners being undertaken in state and territory jurisdictions.  The Australian Greens recognise that the Bill in its current form may give rise to this potential. This is not the intention of the Bill, rather it was envisaged that the Commonwealth Commissioner would complement existing work and focus not on individual cases, but advocate for system-wide approaches.

Recommendation 1

1.11      To give greater clarity to the role and function of the Commonwealth Commissioner the Australian Greens recommend that Section 9 (h) be removed.

Children and young people with disabilities

1.12      The Australian Greens recognise that the concerns of some of the submitters (National Disability Services, Novita Children’s Services) that children and young people living with disability were not mentioned expressly. In particular, it was asserted that this is “critical in the context of requiring domestic legislation to reflect and implement international commitments and obligations.”[1]

1.13      It was always the intention of the Greens for the Commissioner to advocate on the issues affecting children and young people living with a disability. We recognise the sector’s view that this intention could be better reflected by expressly noting children and young people with disabilities as being within the Commissioner’s remit and we support this amendment.

Recommendation 2

1.14      The Australian Greens recommend that the inclusion of children and young people with disabilities should be made in Section 3 and in Section 9 of the Bill, by reference to them and to Article 23 of UNCRC.

Aboriginal and Torres Strait Islander Children and Young People

1.15      The Greens also recognise that Aboriginal and Torres Strait Islander children and young people are among some of the nations' most disadvantaged. There is a need for the Commissioner to have regard for these issues. That is why Aboriginal and Torres Strait Islander Youth are identified in section 9(c)

1.16      A specific Commissioner or Deputy Commissioner to examine these issues was also suggested, and we consider this to be worthy suggestion and would consider this initiative as something to underpin any Commonwealth Commissioner once in place. 

Reporting to the United Nations

1.17      A number of submissions (including the NDS, Australian Association of Social Workers, Law Council of Australia, Save the Children Australia) suggested amendments to the reporting requirements outlined in the Bill. In particular, there was anxiety that the Bill as currently drafted would see the Commissioner report to the United Nations Committee on the Rights of the Child and this would undermine the Commissioner’s independence.

Recommendation 3

1.18      The Australian Greens recommend that as it was never envisaged that the Commissioner would report on behalf of the Government, we would support formalising the capacity of the Commissioner to report directly to the Committee.

Asylum seekers

1.19      The Greens recognise that the committee heard diverse views on section 9(d) designed to appoint the Commissioner as guardian for unaccompanied minors. While we appreciate that there may be a need to further refine this role, if implemented the proposal would certainly create a better outcome for unaccompanied minors and assist the Government in meeting its international commitments. The conflict inherent in legislation that allows the Immigration Minister to act as both guardian and jailor, is in effect surrendering the interests of the child to immigration policy outcomes. A number of submitters noted this potential for conflict of interest, including the UNHCR and the AHRC.

Conclusion

1.20      Advocacy groups have been calling for the introduction of a Commonwealth Commissioner for Children and Young People for some time, and the Greens are disappointed that the majority report fails to accurately reflect the views of the community. 

1.21      The Commissioner would tackle problems such as child abuse, neglect, poor education, poverty, youth homelessness and social disadvantage. The Commissioner would also provide a voice for young people, a means of communication with Government, and a simple avenue for complaint for ill-treatment.  These functions are currently severely lacking on a federal level, and are essential if Australia is to fulfil out obligations under the United Nations Convention on the Rights of the Child.

Recommendation 4

1.22      The Australian Greens recommend that subject to the above recommendations, the Bill should proceed for debate and passed into law.

Senator Sarah Hanson-Young
Australian Greens Spokesperson for Youth

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